International Court of Justice is commonly referred to as the world court. A unanimous decision was given in favour of India in the form of indication of provisional measures as a conclusion of public hearing on May 15, 2017 in Kulbhushan Jadhav case. Unfortunately, Pakistan's representative Mr Khawar Qureshi could not succeed in influencing a single judge, the panel consisted of 12 judges, of his submissions to the court, in other words to turn a single judge in his favour.

Background

May 8 2017: A request for the indication of provisional measures and proceedings against Pakistan in a dispute concerning alleged violations of Article 36 of the Vienna Convention on Consular Relations of 24 April 1963 was initiated in ICJ by India as convicted spy Kulbhushan Sudhir Jadhav was sentenced to death on April 10, 2017 by a military court in Pakistan. The case was brought through a written application addressed to the registrar of the court. The registrar through secretary-general notified Pakistan to appear before the court.

The Hague, 15 May 2017. In conclusion of the public hearing between the parties, ICJ within their power issued anindication of provisional measures, a unanimous decision, as requested by India to preserve its rights. The indication is that the Islamic Republic of Pakistan must “take all measures at its disposal” to ensure that Mr Kulbhushan Sudhir Jadhav, of Indian nationality, is not executed pending a final judgment of the Court in the Jadhav Case (India v Pakistan). It was forwarded to both the parties and to the UN Security Council.

What if Pakistan never appeared and contested the case in the first place?

India would have needed to make an application to get a decision in their favour. However ICJ before giving such a judgment would have needed to be satisfied of jurisdiction and that the case is well founded in fact and law. However, that's not an option anymore. The case was represented and contested by Mr Khawar Qureshi on behalf of Pakistan.

Current position

Judge Bhandari, in his declaration, discussed the four requirements for the indication of provisional measures: (i) prima facie jurisdiction; (ii) plausibility; (iii) real and imminent risk of irreparable prejudice; (iv) link between the rights claimed on the merits and the provisional measures requested.

India based the court’s jurisdiction on Article I of the Optional Protocol to the Vienna Convention, which provides that the court has jurisdiction over “[d]isputes arising out of the interpretation or application of the [Vienna] Convention”. Judge Bhandari clearly mentioned in his declaration that "neither India nor Pakistan made any reservation to that Optional Protocol" and referred to the case of LaGrand in which court found to have prima facie jurisdiction based on same legal provisions, to which both Germany and the United States of America had not made any reservations. Thus in accordance to Equatorial Guinea v France, the court found its jurisdiction based onthe prima facie existence of a dispute which is confirmed by the exchange of Notes Verbales on the subject of consular access to Mr Jadhav, between the Parties. Furthermore, such a dispute falls within the scope of the Vienna Convention since the facts alleged by India all relate to its consular rights guaranteed under the Vienna Convention, which were allegedly denied by Pakistan.

The court established the further requirements that are plausibility, real and imminent risk of irreparable prejudice and the link between the rights claimed on the merits and the provisional measures requested, based on the facts of the case, respectively that:

i. that consular access was denied to a person who is indisputably an Indian national, who has been arrested, tried and convicted in a foreign country,

ii. Mr Jadhav was sentenced to death on April 10, 2017, by a military court in Pakistan (a foreign country)

iii. The measures requested are aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna Convention, are preserved.The ICJ always indicated in previous similar cases that the respondent State should not execute the person whose consular rights were at stake in the proceedings before the Court, and that the respondent State should inform the Court as to the measures taken in the implementation of the order.

Furthermore, what likely final judgment the ICJ will consider to grant?

An indication of the perspective the court is looking at this particular case can be construed from the decision of the court on May 15, 2017. It is to remind that the jurisdiction has already been established by the court and the court has the power to determine "the nature or extent of the reparation to be made for the breach of an international obligation" pursuant to Article 36 subparagraph 2(d) of the Statute of the Court.

The Judge Cançado Trindade has already suggested that on balancing act this court will deal with rights of states and rights of individual altogether. Simultaneously indicated that Human Rights supersedes rights of states when grieved charges are in consideration such as the death penalty in this case. This is implied from his words that "even though the proceedings in contentious case before the ICJ keep on being strictly inter-State ones (by “attachment to an outdated dogma of the past”), this in no way impedes that the beneficiaries of protection in given circumstances are the human beings themselves, individually or in groups".He also states that contemporary international law involves“the right to information on consular assistance with the guarantees of the due process of law”

In addition India has already requested for:

i. Restraining Pakistan from giving effect to the sentence awarded by the military court, and directing it to take steps to annul the decision of the military court as may be available to it under the law in Pakistan.

ii. If Pakistan is unable to annul the decision, then this Court to declare the decision illegal being violative of international law and treaty rights and restrain Pakistan from acting in violation of the Vienna Convention and international law by giving effect to the sentence or the conviction in any manner, and directing it to release the convicted Indian national forthwith.

Taking in account all the above mentioned details it is likely that the ICJ will grant a final judgment in favour of Mr Jadhav being provided with consular access and a retrial. This will result in (i) reparation of the breach of international obligation i.e. denial of consular access in this case and (ii) concurrently will let Mr Jadhav have fair trial in accordance with Human Rights, which the judges of ICJ seem to be keen to uphold.

Conclusion

In summary, the jurisdiction of ICJ is established to hear the case brought by India on behalf of Mr Kulbhushan Sudhir Jadhav. Indication of provisional measures has been granted as requested by India to suspend execution of Mr Jadhav till the final judgment of ICJ. It is requested by India that a consular access should be granted, the decision of Pakistan military court be annulled, a retrial should be given or the ICJ should set free Mr Jadhav. India intends to proceed with an appeal as well, as it is stated by India that on April 26, 2017, Mr Jadhav’s mother filed “an appeal” under Section 133 (B) and “a petition” to the Government of Pakistan under Section 131 of the Pakistan Army Act 1952, both of which were handed over by the Indian High Commissioner to Pakistan’s Foreign Secretary on the same day. On the other hand the respective judges of ICJ seems eager in preservation of human rights and consider that Mr Jadhav's rights are violated by denial of consular access as indicated in their temporary decision of the hearing on May 15, 2017. As ICJ has the power of reparation of breach of an international obligation, it seems likely that the judgment would be in favour of Mr Jadhav to be provided consular access and a retrial.

It is to bring in the attention that ICJ judgment is final and cannot be appealed. Furthermore, the binding force of the judgment is only limited to be between the parties and in respect of that particular case.

In the end my question is why and who /which authority denied consular access to Mr Jadhav? Had the same sentence been passed while Mr Jadhav been allowed consular access, Pakistan would not have been in the position it is today.